This acquittal appeal arises out of a judgment and order recording acquittal of the respondents of charges under Sections 18 and 25 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and under Sections 16A and 66A of the Bombay Prohibition Act, by City Sessions Court, Ahmedabad in Sessions Case No.248 of 1988. 2. As per the prosecution case, respondents No.1 and 2 were found to be in possession of contraband opium weighing 6 Kg on 08/11/1987 at about 11:00 am near Vashtrapur Andhjan School, while they were travelling in auto-rickshaw bearing Registration No.GRX 6223, which was driven by respondent No.3. The Police was waiting for this rickshaw to come, as they had arranged a watch pursuant to an information received by them about respondent No.1 distributing opium in auto-rickshaw No.GRX 6223.
3. Upon seeing the auto-rickshaw, the Police intercepted the same and respondent No.1 was found to be having the contraband in his lap. The contraband was seized, samples were drawn, sealing was done and accused were arrested. Charge-sheet was filed in the Court of learned Metropolitan Magistrate, who in turn, committed to the Court of Sessions, Ahmedabad and Sessions Case No.248 of 1988 came to be registered.
4. The appellant is represented by learned APP, Mr.Dabhi. Respondent No.3 is represented by learned Advocate Mr.Padiya. Respondent No.2 is reported to have expired and case against him stands abated as per our oral order. So far as respondent No.1 is concerned, it has still not become possible to serve him with a notice.
5. Since the appeal is very old, we deem it appropriate to examine the merits and for that purpose we have heard learned APP and learned Advocate Mr.Padiya.
5.1 We find that the Police was acting upon prior secret information regarding a Narcotic offence and when the vehicle was intercepted, respondent No.1 was allegedly found to be in personal possession of the contraband. It is an admitted fact, as can be seen from the evidence of Investigating Officer, as well as from the Panchnama of seizure drawn at the time of occurrence, that mandatory requirements of Section 50 of the NDPS Act have not been complied with. No option or opportunity was afforded to the suspect of search being made in presence of any other Gazetted Officer or a Magistrate. This would vitiate the entire investigation and prosecution, as per settled proposition of law. The trial Court was, therefore, justified in recording acquittal.
6. It would also be appropriate to record here that even as per the evidence of Investigating Officer, he was not able to bring on record any material to show any nexus between respondent No.3 and respondents No.1 and 2. Respondent No.3 is an auto-rickshaw driver and in absence of any connection between him and respondents No.1 and 2, he could not have been convicted for the offence punishable under the NDPS Act.
7. For the foregoing reasons, we are of the view that the trial Court was justified in acquitting the accused persons-respondents herein. The view taken by the trial Court is not impossible one or de hors the evidence on record or palpably erroneous. We do not deem it proper to interfere with the judgment of the trial Court, as we do not find any merits in the appeal. The appeal must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) sompura